The possession of that power by the Commons and the warning that it would be used if necessary has been sufficient to ensure compliance on the part of the Lords. In a similar manner Congress and the President could control the Supreme Court. The Constitution does not fix the number of Supreme judges. This is a matter of detail which was left to Congress, which may at any time provide for the addition of as many new judges to the Supreme Court as it may see fit. Thus Congress, with the co-operation of the President, could control the policy of the Supreme Court in exactly the same way and to the same extent that the House of Commons controls the House of Lords.

That the Federalists who were in possession of our general government during the early years of its history appreciated the advantage of controlling the policy of the Supreme Court was pointed out in the chapter on the Federal judiciary. They accomplished their purpose, however, by selecting for membership in that body, men whose political record was satisfactory and whose views concerning judicial functions were in harmony with the general plan and purpose of the Federalist party. In fact, the scheme of government which they set up contemplated no such possibility as the democratization of the Executive or the Senate. If their expectation in this regard had been fully realized, a judicious use of the appointing power

would have been all that was necessary to ensure a conservative court. Perhaps the framers of the Constitution did not imagine that the power to increase the number of judges would ever be needed to enable the President and Senate to secure the co-operation of the Supreme Court. At any rate, the power given to Congress and the President to enlarge the membership of that body was not, in the opinion of the framers, a power that could ever be employed against the conservative class, since the radical element, it was believed, would never be able to control more than one branch of the government, the House of Representatives. But, although it can not be determined whether the Federalists had in mind the possibility of using this power to control the policy of the court, it should be noted that, according to their view of the government, it might be used by, but not against, the conservative class. Nor is it likely that they would have hesitated to use this power had it been necessary to the success of their plan.

The failure of the Federalists to check the growth of democratic ideas and the success of the more liberal party in bringing about the election of Jefferson alarmed the conservative class. It was seen that if all other branches of the government should come under the influence of the liberal movement, the judicial check could be broken down. To guard against this danger, an

effort was made by the conservative interests to mold a public sentiment that would protect the Supreme Court against political interference at the hands of those who might wish to override judicial opposition to radical measures. This took the form of what might be called the doctrine of judicial infallibility. The judiciary in general and the Supreme Court in particular were held up as the guardian and protector of American liberty. The security of the people was represented as bound up with the freedom of the courts from political interference. At the same time it was proclaimed that the Supreme Court exercised only judicial functions and that any attempt on the part of the President or Congress to interfere with them would make that body the organ of faction or class. But, as a matter of fact, the danger which they foresaw to the Supreme Court was not a danger growing out of its judicial, but out of its legislative functions. It was not because the Supreme Court was a purely judicial body, but because it exercised a supremely important legislative function, that they were so solicitous to guard it against anything approaching popular control. The threefold division of governmental powers into legislative, executive, and judicial, as shown in a preceding chapter, has no logical basis. There are, as Professor Goodnow has said,1 but two functions of government, 1 Politics and Administration, p. 9.

that of expressing and that of executing the will of the state. The Supreme Court, in so far as it is a purely judicial body—that is, a body for hearing and deciding cases-is simply a means of executing the will of the state. With the performance of this function there was little danger that any democratic movement would interfere. Nor was this the danger which the conservative classes really feared, or which they wished to guard against. What they desired above all else was to give the Supreme Court a final voice in expressing the will of the state, and by so doing to make it operate as an effective check upon democratic legislation. It is this power of expressing the will of the state which our conservative writers defend as the pre-eminently meritorious feature of our judicial system. Indeed, this is, in the opinion of the conservative class, the most important of all the checks on democracy. Any suggestion of using the power vested in Congress and the President to reorganize the Supreme Court is naturally enough denounced as the most dangerous and revolutionary of political heresies. It is not probable, however, that the Supreme Court would much longer be permitted to thwart the will of the majority if the other branches of the Federal government were thoroughly imbued with the belief in democracy. As explained in Chapter V, the Constitution contains no hint of this power to

declare acts of Congress null and void. It was injected into the Constitution, as the framers intended, by judicial interpretation, and under the influence of a thoroughly democratic President, and Congress might be eliminated in the same way.

The most important feature of the Constitution from the standpoint of democracy is the provision contained in articie V, requiring Congress "on the application of the legislatures of two-thirds of the several states" to "call a convention for proposing amendments." The progress of democracy in the various state governments is likely to compel resort to this method of changing the Federal Constitution if the Senate much longer persists in disregarding the will of the people. In fact, this is, in the opinion of the conservative class, the one fatal defect in the scheme of constitutional checks established by our forefathers. It in reality opens the door to the most revolutionary changes in our political arrangements. Congress can not refuse to call a general constitutional convention when two-thirds of the states demand it, and this convention might propose an entirely new constitution framed in accord with the most advanced ideas of democracy. It might also follow the precedent set by the framers of our present Constitution and prescribe an entirely new method of ratification, as our more conservative forefathers did when they disregarded the